A Federal Judge Declines to Grant a Motion to Dismiss a Minnesota Student’s First (and Fourth) Amendment Complaint Based on Her School’s Demand That She Give Up Her Facebook and Email Passwords

Public-school First Amendment cases have cropped up frequently in recent years, with one key issue being whether the school can reach outside its own grounds, and into students’ homes, when they communicate, after school hours, about school-related topics on Facebook or other social-networking sites.

In my last school-speech column here on Justia’s Verdict, I described how one student went to court to sue her student tormentors for defamation. (That column also covered a number of earlier student speech cases, including two that went all the way to the Supreme Court.)

While that case was student-versus-student, the Minnesota case that I’ll discuss in today’s column was student-versus-administrators.

The Allegations of the Student’s Complaint

The student in the case is known only by her initials, “R.S.,” since juveniles are allowed to protect their privacy in court. She was a 12-year-old sixth grader at the time of the dispute.

The dispute was sparked by two Facebook postings that R.S. wrote and posted on her Facebook “Wall.” One posting expressed dislike of an employee of the school, named Kathy, who was a hall monitor and whom R.S. said had been “mean” to her.

The second posting then asked who had “told on” R.S., regarding R.S.’s first posting about Kathy.

The two postings—accessible only to R.S.’s Facebook friends—were made from R.S.’s home, not from a school computer, and were not made during school hours. Apparently, though, one of R.S.’s so-called “friends” sold her out, for eventually R.S.’s initial posting made its way to her school’s principal.

When the principal and other school officials learned of R.S.’s initial Facebook posting, they deemed it to be an instance of bullying, aimed at Kathy; gave R.S. detention for being “rude/discourteous”; and required R.S. to apologize to Kathy.

As noted above, R.S. subsequently posted a second message, trying to figure out who among her Facebook friends had “told” on her. For that second message, which her school also heard about somehow, she was given a one-day in-school suspension, and banned from a school ski trip.

After that, things only got worse for R.S. The guardian of a male student reported to the school that the male student and R.S. had been talking about sexual topics on the Internet—in a conversation that the boy admitted he had initiated. R.S. admitted to participating in the conversation, but noted that it did not happen in school or during school hours.

Nevertheless, the school compelled R.S. to give school administrators access to her private Facebook and email accounts, by turning over her passwords.

The situation R.S. faced, when she was asked to give over her passwords, was quite coercive. It included the presence of a uniformed police officer who was wearing a taser, and threats of more time in detention if R.S. failed to grant school officials access to her accounts.

Moreover, the search was not limited to finding the sexual conversation of which the administrators had heard, but also seems to have covered a large number of R.S.’s Facebook messages, both private and public. Moreover, there was no request by the school for R.S.’s consent to search her private messages. And only after the whole experience occurred, was a call finally made to R.S.’s mother

R.S. says that while she was being detained, she was “intimidated, frightened, humiliated, and sobbing.” Subsequently, too, R.S. was so traumatized that she missed two days of school.

R.S. also alleges in her complaint that she was not the only student at her school who had to disclose private information to school officials; she says that there have been others, as well.

The Court’s Holding on Municipal Liability

R.S. eventually sued the municipality in which her school district was located. To show municipal liability, in circumstances such as these, the court held, it is necessary to show an unconstitutional policy or custom.

Here, the court found that, despite some lack of clarity as to who had the final word on school policy, it was clear, at a minimum, that—based on the allegations of the complaint—the school defendants’ actions counted as “customs.” Not only was R.S. herself twice punished, and her communications searched, but other students also suffered the same treatment—with their online communications also searched, under circumstances similar to those R.S. endured.

The Court’s Holding Rejecting Qualified Immunity for the School Officials

Despite the “custom or practice” finding, the school officials could still have escaped liability if the court were to hold that their conduct did not violate clearly established statutory or constitutional rights, of which a reasonable person would have known. But here, the court, based on the allegations of the complaint, saw just such a violation.

Emphasizing that public school students do not lose their rights at the schoolhouse door, the judge reasoned that out-of-school speech must be subject to, as the judge put it, “even less stringent school regulation than in-school speech.”

Rightly refusing to concoct a wholly new school-speech test for the Internet age, the judge hewed to the tests that the Supreme Court has already handed down. Thus, the judge held sensibly that—as in other First Amendment contexts—in public schools, too, a “true threat” may always be punished.

Then, based on the Supreme Court’s precedents in Tinker v. Des Moines Indep. Cmty. Sch. Dist. and Morse v. Frederick, the judge held that“student expression may not be suppressed unless school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school.” Moreover, the judge concluded that the suppression of out-of-school speech is especially disfavored.

Based on these precedents, the judge summarized the law on out-of-school statements by public school students as follows: “Such statements are protected under the First Amendment and not punishable by school authorities unless they are true threats or are reasonably calculated to reach the school environment and are so egregious as to pose a serious safety risk or other substantial disruption in that environment.”

The court then went on to hold that not only were R.S.’s Facebook messages not true threats, they weren’t even threats at all. Moreover, the court continued, even assuming that R.S.’s messages had indeed been threats, and had also been reasonably calculated to reach the school environment, they still lacked a substantial disruptive effect, and thus could not be punished.

In sum, this was a relatively easy case for the court. Under the judge’s reasoning, every factor cut in favor of R.S.

Why Future Off-Campus Speech Cases Will Likely Be Much Harder Than This One

In the future, courts are likely to face much more difficult cases than this one, when it comes to public-school students’ off-campus speech. Such cases could include serious safety risks, major disruptions of the school day, or threats that might or might not have been meant seriously, thus making a “true threat” call very difficult to make.

This case, however, should have been a very easy one. The school should have stopped with, at the very most, the brief suspensions that it had initially imposed on R.S.. And it should have told R.S’s mother about R.S.’s sexual conversation with the boy, and let her handle it from there.

Instead, the school went to Def-Con 4 over a few fairly mild Facebook postings and one conversation that the boy, not R.S. initiated,–even bringing in a police officer with a taser to scare a middle-schooler.

In sum, cooler minds should have prevailed, and if they had, this case might never have gone to court at all. It’s hard to feel sorry for the school officials here, who apparently chose to terrorize a twelve-year-old. Unfortunately for them, stopping the unchecked use of power is exactly what courts are for.

Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is www.juliehilden.com.

” Instead, the school went to Def-Con 4 over a few fairly mild Facebook postings and one conversation that the boy, not R.S. initiated,–even bringing in a police officer with a taser to scare a middle-schooler.” DEFCON 4 is the second lowest state of readiness used by the United States military. The highest state of readiness (imminent nuclear war) is DEFCON 1. If the intent of the quoted statement is to show that the school greatly overreacted (which it did), then “Def-Con 4″ is an unintentionally tepid way of saying so.

Julie Hilden graduated from Harvard College and Yale Law School, where she served as a Teaching Assistant and a Notes Editor on the Yale Law Journal. From 1992-93, Hilden clerked for then-Chief Judge… more.

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